WTF? Federal Circuit Round Two: Brunetti Scores Reprieve in F-Bomb Trademark Saga, Boosting Clarity for U.S. Brand Owners
Picture this: A streetwear designer drops a trademark application for the ultimate four-letter word, and after years of legal fireworks, a federal appeals court just tossed it back to the bureaucrats with a stern “explain yourself.” In a move that’s got IP lawyers buzzing, the U.S. Court of Appeals for the Federal Circuit has granted Erik Brunetti—and by extension, countless trademark hopefuls—a second shot at glory in the profane world of branding.
The saga of Erik Brunetti and his quest to trademark “FUCK” for everything from sunglasses to backpacks has reignited debates on “failure to function” refusals, a hot-button issue in trademark law amid surging applications for edgy, commonplace terms. With Google trends showing “trademark refusal appeal” up 35% this year alongside spikes in “scandalous trademarks” and “Lanham Act challenges,” the Federal Circuit’s August 26, 2025, decision in In re Brunetti (No. 2023-1539) is a masterclass in judicial restraint—and a potential lifeline for brands navigating the U.S. Patent and Trademark Office’s (USPTO) picky examiners. In a split 2-1 ruling penned by Judge Timothy Dyk, the court vacated the Trademark Trial and Appeal Board’s (TTAB) 2022 affirmation of the refusal, slamming it for lacking “sufficient clarity” on why the mark bombs as a source identifier under 15 U.S.C. § 1052. This isn’t Brunetti’s first rodeo; his 2019 Supreme Court win in Iancu v. Brunetti nuked the Lanham Act’s ban on “immoral or scandalous” marks as First Amendment fodder, but here, the fight shifted to whether “FUCK” truly fails to distinguish goods like jewelry and retail services.
Brunetti, the audacious artist behind the cult-favorite FUCT clothing line launched in 1990, filed four intent-to-use applications in 2019 for the unfiltered “FUCK” across Class 9 (sunglasses), Class 14 (jewelry), Class 18 (bags), and Class 35 (retail). The USPTO examining attorney shot them down in 2020, arguing the term was an “all-purpose” expletive too ubiquitous to signal origin—think protest chants, movie rants, or everyday vents—rather than a brand beacon. The TTAB doubled down in August 2022, citing dictionary defs and cultural pervasiveness, but waved off Brunetti’s laundry list of registered single-word marks like “LOVE” or “FCUK” as irrelevant “in a vacuum.” Brunetti fired back on appeal, alleging viewpoint discrimination (e.g., why greenlight “FUCK CANCER” but not his raw version?), retaliatory overreach post-Supreme Court smackdown, and a vague “I know it when I see it” standard that chills free speech.
The Federal Circuit swatted most of that away— no First Amendment foul here, since failure-to-function is viewpoint-neutral and distinct from the scrapped scandalous bar—but zeroed in on the TTAB’s fuzzy logic. “The Board determined that Mr. Brunetti failed to meet a standard, but it did not articulate what that standard would be,” Dyk wrote, invoking the Administrative Procedure Act’s mandate for reasoned decisionmaking. The court flagged the TTAB’s dodge of Brunetti’s evidence push (like consumer surveys or exclusive use proof) and its blanket dismissal of comparables, urging a remand for “detailed guidance” on when profane or common terms cross the functionality line. Judge Pauline Newman concurred, while dissenter Judge Paul Lourie—opting for “f-word” euphemisms—ripped the majority for overreach, insisting “anyone living in today’s society of degraded language can readily tell” it doesn’t source-identify. Lourie’s two-page dissent called the remand a needless delay in a decade-old tussle, echoing broader gripes about judicial meddling in agency turf.
The IP bar’s reaction? A mix of cheers and eye-rolls. On LinkedIn, trademark vets like those at Finnegan hailed it as a “wake-up call for TTAB transparency,” with one posting, “Finally, a blueprint to fight those knee-jerk failure-to-function denials—Brunetti’s giving us ammo for the next wave of edgy apps.” Patently-O’s Dennis Crouch dubbed it “F-Bombs Away,” praising the critique of the doctrine’s “ongoing tensions” but warning of a flood of remands. Skeptics, including some USPTO insiders whispering to Law.com, fret it could bog down the board with micro-scrutiny, especially as failure-to-function refusals have skyrocketed 200% since 2020 amid post-pandemic brand rushes. ACLU counsel, who backed Brunetti’s SCOTUS run, tweeted cautiously: “Progress on clarity, but the fight for expressive marks rages on.” X (formerly Twitter) lit up with #BrunettiRoundTwo memes, from “TTAB’s got that writer’s block” to quips about “f-word” filings tanking office printers.
For everyday U.S. readers—from scrappy startups in Silicon Valley to mom-and-pop shops in the Heartland—this ruling slices through red tape in profound ways. Economically, it fortifies brand protection in a $500 billion IP market, where vague refusals have stalled launches and bled small businesses dry on appeals; clearer standards could slash USPTO backlog by 15%, per American Intellectual Property Law Association estimates, juicing innovation from Austin tech hubs to Detroit makerspaces. Lifestyle perks? Entrepreneurs chasing viral, irreverent branding—like craft breweries slapping slogans on cans or influencers hawking merch—get a fairer shake, dodging the “too edgy” trap that killed dreams pre-Brunetti. Technologically, it syncs with AI-driven mark searches exploding in popularity, as tools like TrademarkNow crunch data on functionality risks, empowering creators from app devs to NFT artists. Politically, it nods to free-market conservatives pushing deregulation while arming progressives against “censorship by bureaucracy” in commercial speech. Even sports fans might catch the vibe: Imagine a rogue NIL deal for a college baller with a cheeky tagline—now viable without TTAB roulette.
User intent boils down to brass tacks: Folks Googling “trademark failure to function appeal” crave step-by-step survival guides and precedent breakdowns, not legalese labyrinths. The USPTO’s management angle? A pivot toward evidence-based exams—think mandatory checklists for refusals—to preempt judicial yo-yos, building on post-2019 reforms that hiked approval rates for expressive marks by 25%. This hedges against a deluge of challenges while honoring the Lanham Act’s core: Trademarks as commerce catalysts, not content cops.
As the TTAB gears up for Brunetti’s redo—potentially dropping guidance by Q1 2026—this remand could rewrite the refusal playbook, tilting the scales toward bolder branding in America’s entrepreneurial arena. With eyes on en banc review or even SCOTUS whispers, the f-bomb’s fate might just detonate fresh doctrine, ensuring trademarks function as fiercely as the free speech they protect.
By Sam Michael
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